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State v. Binder


February 23, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-07-1119.

Per curiam.



Argued February 4, 2009

Before Judges Cuff, Fisher and Baxter.

In this appeal, we review a Law Division order that admitted defendant, Karen Binder, into the Pre-Trial Intervention (PTI) Program over the objection of the Middlesex County Prosecutor. The judge's conclusion that the prosecutor rejected defendant's application solely because she refused to provide a urine sample is unsupported by the record before us and ignores the six statutory factors on which the State legitimately relied. We reverse.


On July 11, 2007, a Middlesex County grand jury returned an indictment charging defendant with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a). The indictment alleged that while serving as a teacher at a public high school, defendant sent "numerous sexually explicit text messages" to two high school students, J.B. and N.B.

The State's investigation revealed that after sending J.B. a text message saying "I need some dick," defendant asked J.B., who was sixteen years old, to take pictures of his penis and send them to her, which he did. N.B., age seventeen, asserted that in a two-day period, defendant sent him over 100 text messages, including one in which she discussed "do[ing] the dirty" with N.B., and proposed to have sex with N.B.'s brother and father. In another text message, she told N.B. that "if u don't like ur girl to suck ur dick, then ur a homo." Although neither J.B. nor N.B. was a student of defendant, the text messages were sent during school hours and other students became aware of them. The State's investigation also revealed an incident in the school cafeteria when defendant was heard asking three boys how big their penises were.

On March 28, 2008, defendant applied for entry into PTI. Six weeks later, the criminal division manager wrote to the Prosecutor's Office recommending that defendant's application be rejected. On May 22, 2008, the Prosecutor's Office likewise rejected defendant's application for PTI. The State's rejection letter relied upon six statutory factors: "[t]he nature of the offense," N.J.S.A. 2C:43-12(e)(1); "[t]he facts of the case," N.J.S.A. 2C:43-12(e)(2); "[t]he motivation and age of the defendant," N.J.S.A. 2C:43-12(e)(3); "[t]he needs and interests of the victim and society," N.J.S.A. 2C:43-12(e)(7); "[w]hether . . . the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution," N.J.S.A. 2C:43-12(e)(14); and "[w]hether . . . the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program," N.J.S.A. 2C:43-12(3)(17).

In its rejection letter, the State observed that although defendant did not have a criminal record, on the date she submitted her PTI application, she was issued motor vehicle summonses for driving while intoxicated and careless driving. The State also noted that defendant refused to provide the urine sample that is part of the PTI application process, from which the State concluded the specimen would likely "have been positive for narcotics usage." Defendant appealed the denial of PTI.

On July 7, 2008, a Law Division judge issued a written decision and confirming order, reversing the prosecutor's rejection of defendant's PTI application, and finding that the prosecutor's decision was the result of a patent and gross abuse of discretion. The judge reasoned:

In this case, the defendant met her burden of demonstrating that the Prosecutor's decision to reject her from Pre-Trial Intervention was the result of patent and gross abuse of discretion. The court finds that the Prosecutor's decision to deny defendant entry into the program was based on an irrelevant and inappropriate factor, which was [defendant's] refusal to submit to a urinalysis. [Defendant's] refusal to submit to a urinalysis should not have been the deciding factor in rejecting [her] from PTI and as such, it is an abuse of discretion.

. . . Precluding the defendant from entering the Program will subvert the goals of Pre-Trial Intervention. This Program was designed to provide the most effective method of dealing with offenses while alleviating the overburdened criminal calendar. In this case, the defendant has no prior criminal record. Additionally, the court finds that the best way of dealing with the defendant's behavior is through intensive counseling and supervision rather than through imprisonment. Also, it is important to note that although [defendant] was charged with the crime of Official Misconduct, her alleged actions, although undoubtedly inappropriate, may not rise to the level of Official Misconduct. Neither of the students were students of the defendant. The text messages occurred outside the school day and the relationship between the defendant and the students did not arise out of [defendant's] duties as a teacher nor did they occur in the course of the performance of those duties. Therefore, the State's argument that the defendant used her position as a teacher to facilitate inappropriate communications may have little merit.

. . . [T]he Prosecutor's decision to reject the defendant from the Pre-Trial Intervention Program was the result of [a] patent and gross abuse of discretion. The court finds that the Prosecutor rejected the defendant solely due to her failure to submit a urine sample. Using this factor as the basis for the Prosecutor's decision was not only inappropriate but also undermined the goals and the purposes of the PTI Program. Accordingly, the court reverses the Prosecutor's rejection.

On September 3, 2008, defendant was admitted into PTI over the State's objection.

On appeal, the State argues that its rejection of defendant's application was not, as the judge erroneously found, a patent and gross abuse of discretion. The State argues that its decision to reject defendant was made after a "clear and thorough review of the [statutory] factors," and that defendant's refusal to submit to a urinalysis "was a consideration in the assistant prosecutor's determination, but was by no means a controlling factor in the prosecutor's decision." The State also argues that the judge improperly substituted her judgment for that of the prosecutor and omitted any discussion of the six statutory factors the assistant prosecutor had relied on in reaching her decision. Defendant maintains, as she did before the Law Division, that her refusal to provide a urine sample was the sole reason the State rejected her application.


A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Therefore, an appellate court reviews a trial judge's decision de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid.

As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).

Thus, "judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [Bender, supra, 80 N.J. at 93 (citation omitted).]

With these principles in mind, we review the judge's decision to overturn the prosecutor's rejection of defendant from PTI. We conclude the judge's decision is flawed for a number of reasons. First, her conclusion that the prosecutor's rejection was due solely to defendant's refusal to submit a urine sample is unsupported by the record. In fact, the record demonstrates exactly the opposite. Specifically, the prosecutor's well-reasoned May 22, 2008 letter provided six reasons for rejecting defendant's application, including the nature of the offense, the needs and interests of the victim and society and the strong need for public prosecution. The judge's written opinion makes no mention of those six reasons for rejection and instead, ignoring all evidence to the contrary, wrongly concludes that defendant's refusal to provide a urine sample was the only reason the prosecutor rejected her application.

Second, the judge impermissibly evaluated the State's proofs, concluded that those proofs were weak and used that as a basis to overcome the State's decision. In so doing, the judge violated one of the teachings of Nwobu: a judge is prohibited from assessing the weight of the State's case and using that as a basis for overturning a prosecutor's decision. 139 N.J. at 256.

Third, and most important of all, the judge has impermissibly substituted her opinion of defendant's suitability for PTI for that of the prosecutor, who by statute and court rule is entrusted with the responsibility of deciding whom to prosecute and whom to divert. Where, as here, the prosecutor's decision is "based on appropriate factors and rationally explained," this court "does not have the authority . . . to substitute [its own] discretion for that of the Prosecutor." Id. at 253 (citation omitted).

Thus, the judge's conclusion that "the best way of dealing with the defendant's behavior is through intensive counseling and supervision" rather than through criminal prosecution was not hers to make. DeMarco, supra, 107 N.J. at 566. Once the prosecutor has made that decision, judicial review, as we have observed, is "available to check only the most egregious examples of injustice and unfairness." Ibid. (citation omitted). Here, the judge discussed Leonardis II and Nwobu and reviewed the deferential standard that applies to judicial review of a prosecutor's rejection of a PTI application. It is readily apparent, however, that the judge's discussion of the deference due a prosecutor's decision was, in the end, little more than lip service. The judge reweighed the proofs and reanalyzed the statutory factors as if she, rather than the prosecutor, was the person entrusted with the sensitive prosecutorial decision that is at stake whenever a diversion decision is being made. The judge failed to give the prosecutor's decision the "enhanced deference" that it is due. DeMarco, supra, 107 N.J. at 566. "Striking the proper balance between the retributive and rehabilitative functions of criminal law is very difficult. That decision 'lies, in the first instance, with the prosecutor'" and judges "are not free to substitute [their] judgment for his." Nwobu, supra, 139 N.J. at 260 (citations omitted).

Our own review of the prosecutor's denial letter leads to the conclusion that the prosecutor's decision to proceed with prosecution, rather than permit defendant to be enrolled in a diversionary program such as PTI, was the result of a careful, thoughtful, balanced and fair appraisal of the evidence in light of the statutory factors contained in N.J.S.A. 2C:43-12(e). We have been provided with no basis, meritorious or otherwise, upon which to question the prosecutor's conclusion that defendant--a high school teacher who sent vulgar, sexually-provocative text messages to two students--should be subject to the normal channels of criminal prosecution and not diverted into PTI.

Finally, although the State has not relied on this factor as a basis for rejection, we observe that individuals who, like defendant, are charged with first- or second-degree crimes, are deemed presumptively ineligible for PTI admission and should ordinarily not be considered for enrollment except on the joint application by the State and defendant. Nwobu, supra, 139 N.J. at 252; see also Guideline 3(i) of Guidelines for Operation of Pretrial Intervention in New Jersey (Promulgated by the New Jersey Supreme Court pursuant to R. 3:28). Our conclusion that the judge's order of July 7, 2008 must be reversed is not based upon Guideline 3(i) because the State has not relied on this factor; however, we would be remiss if we failed to mention it.

Finally, we note that defendant has been enrolled in the PTI Program ever since September 2, 2008. Our decision to reverse the judge's order and permit the State to restore this matter to the normal course of prosecution does not offend the constitutional protection against double jeopardy. Nwobu, supra, 139 N.J. at 257-59.

Reversed and remanded for the entry of an order terminating defendant's participation in PTI and restoring the matter to the normal course of prosecution.


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